Joint Committee on Draft Civil Contingencies Bill First Report



Appendix 5: Note by Professor Clive Walker, Specialist Adviser to the Committee

INTRODUCTION

This submission was completed in August 2003 and with the benefit of the information provided by the substantial briefing packs sent by the Clerks to the Committee. Therefore, many pertinent arguments about the Civil Contingencies Bill have already been submitted to the Joint Committee. There is no purpose in repeating them here, so this submission will be confined either to arguments which in some way advance or refute arguments made previously or are wholly new points not made elsewhere. The submission is divided into three. In this first part will be considered the most basic questions - the need for legislation at all and the strategy adopted, assuming legislation is to be forthcoming. In the second part, attention will be turned to issues of process and the third part concentrates upon points of substance. Throughout, attention will be paid to the principles on which the legislation should rest, so that the critique is normative as well as factual.

There is a strong case for the reform of laws on civil contingencies. The reasons for this assertion are as follows.

First, most of the attention during the past thirty years has focused on the potentiality or actuality of terrorism. The relevant legislation has taken a variety of forms, but expansion and expansion seem the inevitable concomitants to this form of law. Current versions are set out in the Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001. These Acts are currently under scrutiny from a number of sources, and the Civil Contingencies Bill is not the appropriate site to take over that task. However, it should be realised that the laws against terrorism are about the prevention, investigation, detection and punishment of terrorists. They do not address, save for a few aspects,[325] the impact of terrorism on the community.

Second, the existing legislation which is the predominant forerunner to the Civil Contingencies Bill, the Emergencies Powers Act 1920 and the Emergency Powers Act 1964, section 2, is unduly restricted. The 1920 Act concentrates upon industrial strikes, while the 1964 Act assumes that it is the military which will deal with emergencies, and so fails to take account the capabilities and duties of other public services.

Third, the Civil Defence Act 1948 is now little more than an anachronistic empty shell. Planning for major nuclear attack by foreign powers has been overtaken by other priorities and legislation should be more flexible to cope with the changed situation.

Whilst the case for legislation is strong, it is less certain that there should be one, all-encompassing Act to cover most types of future legislation. In fact, terrorist emergency has already been in part considered, and there are other examples of this kind such as legislation dealing with essential services or agricultural or industrial disasters. Examples include the "Seveso Directives"[326] (the Control of Industrial Major Accident Hazards Regulations 1984[327]) or the Food and Environment Protection Act 1985. Under the latter, for example, section 1 provides a power to make emergency orders (which must be approved by Parliament within 28 days), and under section 2(3) the Minister may give "any person such directions as appear...to be necessary or expedient" for the purpose of preventing human consumption of the contaminated food. The Act also expressly sets out the role of the Navy in fisheries protection. Other relevant legislation includes the Energy Act 1976, the Water Industry Act 1991, the Animal Health Act 2002.

The New Zealand Law Commission has considered "the difficulty of framing legislation that will, on the one hand, confer sufficient powers to deal with every conceivable situation that might have the character of a "national emergency", and, on the other, prevent the invoking of drastic powers by executive fiat in a situation where that is not justified".[328] The resultant First Report on Emergencies of 1990 and Final Report on Emergencies in 1991[329] centrally recommended that when emergency powers are required they should be conferred in "sectoral legislation" - legislation deliberated upon and designed in advance of the emergency and tailored strictly to the needs of each particular kind of emergency.[330] This approach was felt to be preferable either to vague prerogative grants of power or last-minute emergency legislation, in respect of which:[331]

"The choice will be between legislation carefully prepared in advance, conforming to the principles and safeguards...and hastily drafted legislation conferring wider powers than are necessary and omitting appropriate protections against abuse. Moreover, New Zealand and overseas experience suggests that emergency legislation passed in haste is likely to remain on the statute book long after its immediate purpose has been served".

Though the subtlety of having permanent laws available but not necessarily active may be lost on some,[332] there are several advantages flowing from this approach. The most important is that it can reduce the dangers of the passage of badly designed and dangerous emergency laws, so long as it contains within it mechanisms for continued scrutiny. Second, one can seek to build upon the experience of permanent legislation and to impose effective scrutiny. This experience of the Prevention of Terrorism Acts prompted United States Supreme Court Justice Brennan to comment that:[333]

"Prolonged and sustained exposure to the asserted security claims may be the only way in which a country may gain both the discipline necessary to examine asserted security risks critically and the expertise necessary to distinguish the bona fide from the bogus."

The recommendation of a sectoral approach has not been implemented in pure form in New Zealand. The First Report on Emergencies was largely implemented by the Defence Act 1990 which had already been drafted as the replacement for the Defence Act 1971.[334] A new, more tightly regulated Civil Defence Act was proposed by the Commission to replace an existing Act of 1983.[335] In the event, the Civil Defence Emergency Management Act 2002 provides for regional, local and national planning and management structures and policies across a broad range of potential emergencies without distinction. With over 120 sections, the Act is far more comprehensive and informative than the Civil Contingencies Bill At the same time, there is more specialised legislation, such as the Biosecurity Act 1993 to deal with "Public Welfare Emergencies".[336]

Though the Canadian Emergencies Act 1988 likewise caters comprehensively for different emergencies under one title, those different emergencies are identified and not treated monolithically. The Act deals successively with public welfare emergencies, public order emergencies, international emergencies and war emergencies. The Act is set out in Appendix III and is again far more comprehensive and informative than the Civil Contingencies Bill and possibly also the Civil Defence Emergency Management Act 2002.

The first lesson from a sectoral strategy for emergency laws might be the worth of pre-emergency legislation. This point will be considered in Part 2 of this submission. It is there argued that such a strategy might avert in part the shortcomings of panic legislation passed at the time of the emergency, which is likely to be badly structured and inadequately principled as to initial invocation, subsequent use and operational demise.

A second lesson from the sectoral approach seems to be the need for a matrix of legislative responses which can address different types and different levels of emergency. In this way, the State's response can be predictable and effective but, at the same time, will be regulated whatever direction it takes. This aspect of the sectoral approach may paradoxically encourage inter-agency planning and co-operation which cut across the boundaries of the different sectors. An example is given by the New Zealand Law Commission:[337]

"In practice the immediate response to an emergency or disaster arising from a natural hazard will come from the police, the fire service and health services, as well as from regional councils, territorial authorities and concerned government departments. At the point that they are unable to mount an effective response Civil Defence will be involved."

In this way, it is recognised that Civil Defence personnel and powers may be used in other sectors if the designated personnel proves inadequate - a necessary weakening of the sectoral principle.[338] But at the same time, "civil defence participation could ensure that proven systems for inter-agency co-operation were in place".[339] One may again compare the requirements for inter-agency planning, co-ordination and exchanges in the U.K. - it may happen from place to place and time to time,[340] but it is not legislated for in the same way as in New Zealand, where there is not only now the Civil Defence Emergency Management Act 2002 but an appointed Director of Civil Defence Emergency Management advising the Ministry of Civil Defence and Emergency Management and developing the National CDEM Plan, technical standards and guidelines.[341] Equally positive steps towards the facilitation of inter-agency civil contingencies co-ordination and planning have been taken in Canada, where an official agency, the Office of Critical Infrastructure Protection and Emergency Preparedness (OCIPEP, the successor in 2001 to Emergency Preparedness Canada),[342] has a duty to further these activities under the terms of the Emergency Preparedness Act 1988, which also designates a Minister Responsible for Emergency Preparedness and obliges all Federal Ministers to develop contingency plans.

Questions arising from this debate include:

  • Whether the Civil Contingencies Bill is the appropriate strategy to deal with future emergencies and crises or whether sectoral legislation is either preferable or at least necessary in addition.
  • Whether, given that there is in effect already some sectoral legislation (dealing with terrorism and emergency services) there is a deficiency in the Civil Contingencies Bill in that it contains no permanent and proactive central co-ordination mechanism equivalent to, say, OCIPEP.[343] This point about the absence of a central civil contingencies agency has been made already in several submissions, including that of the Defence Select Committee.[344] However, the Canadian legislation provides a ready and developed model which should be considered further (the New Zealand model is also worthy of scrutiny but has a short track-record). It is set out in full in Appendix II. Such a body could replace the less transparent and less ambitious Civil Contingencies Secretariat and could also deliver other goals set by the Defence Select Committee such as annual reports and the sharing of information between agencies.[345] It would also help to determine government responsibility. At present there is confusion as between the Cabinet Office and the Home Office. It may, of course, also have more tangible duties, such as to set levels and standards for training and protective measures such as vaccines,[346] to maintain a certain stock level of rations of food and fuel, to set standards for telecommunications protection and usage,[347] for the protection of emergency workers[348] and for business resilience within government. The Cabinet Office booklet, Dealing with Disaster, claims that it would not be helpful to have a single agency but then sees the CCS as "pivotal".[349] If that is so, then the rule of law surely demands legal authority and clarity, especially at time of crisis.

PRINCIPLES AND PROCESSES

Principles of process

In this part of the submission, it is intended to set out the principles which should govern laws which deal with emergencies and the processes which should be inserted into the Civil Contingencies Bill in order to ensure that those principles are observed.

Perhaps the most important lesson which can be learnt from the considerable experience of anti-terrorism legislation is that the rule of law demands as much clarity in the law before the crisis or emergency arises.[350] The broad approach implicit in the Terrorism Act is that there is a continuing need for extensive legislation against political violence now and for ever after. The Anti-terrorism, Crime and Security Act 2001 reinforces that stance, though there are in both Acts "sunset" clauses which ensure that some parts of the legislation must terminate after a set period. Amongst the disadvantages of special laws are that they may be unnecessary (either because of the level of threat of the existence of other powers), there will be abuse of the wide powers and there will be damage to the country's international reputation.[351] Therefore, this claim to a need for a permanently based Civil Contingencies Act should be examined at the outset. It can be justified at two levels.

The first level concerns the powers and duties of states. In principle, it is justifiable for Liberal democracies to defend their existence and their values, even if this defence involves some limitation of rights. In the words of one American judge, a democracy is not a suicide pact and measures can be taken against clear and present dangers.[352] This point is also reflected in Article 17 of the European Convention of Human Rights:

"Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."

It is also very much the point of the power of derogation from the Convention in time of emergency under Article 15:

"In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."

Aside from the power to take action, there is a state responsibility to act against political or paramilitary violence. Each state has a duty, at least in international law, to safeguard the right to life of its citizens (as under Article 2 of the European Convention). In addition, states should more generally ensure the enjoyment of rights and democracy (under Article 1).[353]

It is therefore established that states can and must take protective action against activities which seriously threaten the well-being of its citizens or its democracy.[354] It follows that recent United Kingdom governments have been correct to reject the call, inspired by events in Northern Ireland, "No emergency, no emergency law" (Committee on the Administration of Justice, No Emergency, No Emergency Law (Belfast, 1995)). Assuming a new model of legislation, a stance of "Break glass in case of emergency legislation" is to be preferred. It is illogical to oppose all conceivable forms of special laws on a platform of concerns for human rights. Rather our collective concern for human rights should lead us to the conclusions that we should do our utmost to protect citizens against disaster. This contingency model of a permanent legislative code reflects the philosophy of constitutionalism and democratic accountability - that the legislature can secure an important input if it can speak in advance in a way which cannot be drowned by the screams of a crisis. There is ample evidence to suggest that governments of wholly different complexions will, in a tight corner, wish to resort to much the same measures and react in much the same ways. Thus, if the legal field is left unattended, the power élite will very soon fill it with architecture which, in the circumstances of an emergency, will be rather ugly. One cannot coherently complain about "panic" legislation but at the same time deny to the state the principled and refined means to defend itself and to allay its genuine fears (and often those of the majority of the general public and in Parliament). It is foolish not to plan for contingencies in this way, especially as the planning process can allow the legislature to have its say. This preferred stance reflects what the New Zealand Law Commission called sectoral emergency laws - legislation carefully tailored in detail to respond to each type of emergency, as discussed in Part 1 of this paper.[355]

The main danger associated with the permanent availability of special laws is the inclination towards overuse - that there will be too much smashing of the glass to take out the special laws and they will be utilised in ways which are inappropriate. There must be an adherence to limiting principles which reflect the values of individual rights,[356] constitutionalism (respect for the rule of law and proportionality between emergency and measures used) and democratic accountability and review. As a result, "The true test of the viability of any legal system is its ability to respond to crisis without permanently sacrificing fundamental freedoms"[357]

One may ask next how we can be sure that the powers will adhere to these standards? For example, how can we be sure that Civil Contingency Bill powers are only triggered by serious threats, are proportionate to them, and will end when the serious threat has dissipated either through the efforts of the special measures or otherwise? Three procedural safeguards should be incorporated.

The first feature is to make debates about the legislation whenever it is invoked, especially in Parliament, more principled and informed and less emotional. This process could be aided by stating explicitly some of the desirable limiting principles adduced earlier. So, for each part of the special Act there should be expressed criteria by which to judge its value or dispensability and its proportionality so that there can be a distinct and informed assessment and vote on each part. It might also be suggested that regulations be subject to a sunset clause, so that there is a debate in full and de novo after a set time, such as is required for part VII of the Terrorism Act 2000.

The next safeguard is to enforce observance of these preconditions. This vigilance should be undertaken not simply by Parliament in debate but also by the mechanism of a joint committee, the establishment of which could be triggered by any invocation under the Civil Contingencies Bill and which would investigate and report on any proposed institution of the legislation, its working whilst in force, its renewal and its compatibility with international obligations.

The third restriction is that, once invoked, the actual application of each special law should be subjected to judicial control so far as possible. Judicial review is distinct from the second safeguard as it concentrates more on the individual rather than the collective, though compatibility with the European Convention on Human Rights under section 4 of the Human Rights Act 1998 does veer more towards the latter. It is not expected that judicial review will have more than marginal impact. There is much evidence that the courts are usually indulgent of the uses of emergency powers,[358] and the only reported successful challenge to emergency regulations occurred in Smith v Wood,[359] concerning the prosecution of union official for threatening to withdraw safety cover at a coal mine, a prosecution depending on a regulation which was unlawful as it effectively made it an offence to take part in a strike.

Civil libertarians can only hope to secure the principles of constitutionalism and democratic accountability if they confront, rather than ignore, future possibilities of emergency and apply to them all possible mechanisms of governance - executive, legislative and judicial. The simplistic repeal of all emergency laws abnegates the influence of the legislative and judicial branches and gifts absolute power to the executive, making the smash and grab of new powers an even greater danger than the precipitate smashing of glass to get at well-conceived provisions already behind the glass. The alternative to principled security laws is to trust the Home Secretary to design his own laws and to produce them from his secret filing cabinet at a time when everyone (Parliament, the media and the public) will be too frightened to listen to civil liberties pleadings. Better to encourage a vibrant and inclusive democracy which can try to discern the difference between an over-weaning executive and a measured response to a measured assessment of danger.

Specific comments and recommendations on process

Much of the strategy for responding to crisis in the Civil Contingencies Bill seems to be focused at the local and regional level - that level is "the building block".[360] In principle, this approach is sensible since crisis response requires swift and flexible reaction and so inevitably demands local structures already in theatre and without the necessity to await central orders. However, the appointment of the Emergency Coordinators and Regional Coordinators in section 22 raise issues about democratic accountability.[361] These concerns may be lessened in the case of the non-English Emergency Coordinators where one can conceive a direct link to a devolved administration, a link which seems to be encouraged by the operation of section 26 (consultation with devolved administrations about regulations). But it may be asked:

  • What is the structure of accountability for regional coordinators. They must answer upwards to a Minister. But is there meant to be any downward accountability?
  • Why is there no requirement equivalent to section 26 for England? A simplistic answer is, of course, that there is no devolved authority or authorities for England. But it would be possible to set up for the purposes an ad hoc council consisting of representative from each local government area affected by the emergency.

The requirement in section 19 of the Human Rights 1998 for a Minister to make a statement of legislation in regard to primary legislation do not apply to secondary legislation. But in the case of the Civil Contingencies Bill, many regulations may be far wider in terms of their impact on rights than ordinary primary legislation.

  • It is suggested that the section 19 requirement should equally apply to regulations issued under the Civil Contingencies Bill. Though the short history of section 19 has not been a happy one, one should seek to apply all possible safeguards.

PRINCIPLES AND SUBSTANCE

Principles of substance

An examination of the substance of the contents of the Civil Contingencies Bill will utilise principles already adduced in relation to process, including respect for rights, constitutionalism and democratic accountability. In addition, laws must in substance achieve effectiveness (achieve their aims), economy (do not take up unnecessary resources) and efficiency (provide cost-effective solutions to problems).

Specific comments and recommendations on substance

Fundamental to the legislation is the triggering concept of "emergency" in clauses 1 and 17. The following issues might be considered:

  • The most controversial aspect of the new definition would appear to be the extension compared to the 1920 Act version of a definition (in section 1(1)) in terms of the essentials of life for the community to include also the essentials of life for the government, as stated in clauses 1(1)(c) and 17(1)(c). One is reminded here of debates about the meaning of "subversion" in section 1(2) of the Security Service Act 1989 ("actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means"), where the concern was likewise to distinguish threat to the political interests of the government from the threat to the more public trust interests of the government. The current formulation in the Civil Contingencies Bill prompts the criticism that, "In Britain, the idea of 'civil' defence has been turned on its head. Home defence is about the protection of government - if need be, against the civil population."[362]
  • Questions arise concerning the relationship between the ability to declare an emergency on a regional basis and the wording of Article 15 of the European Convention on Human Rights, which envisages an emergency threatening the life of "the nation". Of course, not every invocation of the Civil Contingencies Bill will require resort to a derogation under Article 15. Nor is it requirement for Article 15 that the emergency and emergency powers must be national - most derogations since 1951 within the United Kingdom have been confined to the region of Northern Ireland. Nevertheless, the effect must be that a different range of regulations are possible when a localised crisis affects the national position and a localised crisis which does not. This should perhaps be reflected in the Bill to avoid error and to ensure due consideration.
  • For all the criteria, there is no reference to any requirements of necessity or proportionality. In this way, it should be specified for all triggering reasons that it is reasonably believed that (i) the use of powers and resources normally available without the invocation of the Civil Contingencies Bill will not be sufficient to deal with the emergency and (ii) that the invocation of the Bill will be a proportionate response to the emergency. These requirements should apply to clauses 1 and 17, though there is some attempt already to reflect necessity in clauses 18(1)(b) and 21(4)(e) as a condition to making Part 2 regulations. As a result, the idea of the "triple lock" in the Consultation Paper[363] becomes more than rhetoric[364] and should certainly not be left as a matter for the government to consider (or not) at will.[365] These formulations could be very significant in dealing with farm animal disease. If the Animal Health Act 2002 is sufficient to deal with an emergency, the effect would be that it should be used in priority to the Civil Contingencies Bill. The further effect would be that compensation is then payable for sure.

As well as questions about the over-inclusiveness or under-inclusiveness of the statutory definitions in clauses 1 and 17, a number of questions may be asked about the relation between the Civil Contingencies Bill and residual common law powers to act in emergencies. The only mention is in Part 1, section 14(5) which refers to the preservation of other statutory powers but does not mention common law. But lurking under the folds of pomp and tradition relating to the Crown are effective and often draconian powers, especially to tackle episodes of crisis. The precise scope of the Crown's powers to intervene in emergencies has been a perennial matter for fierce debate. The disputation has been conducted not only at a theoretical level[366] but has occasionally provoked notable legal challenges, ranging from the Seventeenth century controversies, such as the cases of Saltpetre[367] and Ship Money,[368] to more recent litigation. The contemporary cases amply demonstrate that prerogative powers continue to be vibrantly exercised in response to a wide range of perceived emergencies, such as the destruction of oil installations so as to deny them to an invading enemy (the Burmah Oil case[369]), the banning of trade union membership amongst civil servant engaged in signals intelligence work (the GCHQ case[370]), the provision of plastic bullet rounds to chief constables in defiance of the wishes of local police authorities (R v Secretary of State for the Home Department, ex p Northumbria Police Authority[371]) and, finally, the requisitioning of ships at the time of the Falklands conflict.[372] It is conceivable that the sponsoring department is relying upon the alleged "general principle in law that statutes do not bind the Crown unless by express provision or necessary implication."[373] In general, the law does tend to immunize the Crown in the way suggested. In Lord Advocate v Dumbarton District Council,[374] Lord Keith argued that

"I consider it to be no longer a tenable view that the Crown is in terms bound by general words in a statute but that the prerogative enables it to override the statute. As to the considerations which may be applicable for the purpose of finding a necessary implication that the Crown is bound, it is clear that the mere fact that the statute in question has been passed for the public benefit is not in itself sufficient for that purpose."

Whilst the use of the prerogative to deal with matters of national security is well­established in the common law, there is also wide agreement amongst observers as to the need for both clarification and reform, the aim of which would be to reflect such hallowed principles of parliamentary democracy as the rule of law and the assertion of checks and balances.[375] The present lack of a statutory footing in the U.K. can certainly lead to disputes over when and how the military can intervene in emergencies. To take one illustration, Evelegh, a commentator with the benefit of impressive military experience as well as legal research, asserts that:[376]

"It is startling to reflect that in strict constitutional theory, a corporal with ten privates in a lorry who happened to drive through Grosvenor Square in London when a crowd of demonstrators had burst through a police cordon and were attacking an embassy, would have not merely a right to intervene and suppress the disorder with lethal weapons if necessary, but an absolute duty to do so, in spite of anyone from the Prime Minister to the senior policeman on the spot telling him not to."

By contrast, another academic commentator, Greer,[377] firmly refutes the suggestion that soldiers have a legal duty to intervene[378] but is forced to the observation that "no clear conclusion on these matters can be derived."[379] More positively, Greer suggests that:[380]

"It seems preferable that this uncertainty should be clarified through democratic processes in advance of such intervention, i.e. an informed public debate followed by legislation, rather than merely leaving the matter either to the courts to settle in the legally obscure aftermath or to civil servants to determine behind the closed doors of the Ministry of Defence."

It is proper that there is concern. The deployment of the military outside their wartime roles must always be a matter of public interest, if not controversy. However, it is not the wartime/peacetime distinction per se that is in issue. Constitutional concern arises through what might be termed the "democratic deficit" - that troops can roam the streets without effective political accountability either locally or nationally and without effective control (political, legislative or judicial) over their actions either locally or nationally. The deficit becomes most acute when the soldiers are ordered to engage in any activity under the heading of military aid to the civil powers ("M.A.C.P.") (maintaining or restoring public order)[381] which involves contact with civilians in a confrontational or coercive relationship, though even the operation of troops in aid to the civil community ("M.A.C.C.") (for example natural disaster or civil emergency relief) has the potential for contention.

From this debate, it may be concluded that

  • It would be helpful to clarify the roles of the military and to set them out on a statutory basis in a new Defence Act.[382] Any reform process must involve the injection of constitutional precepts of both a substantive and a structural kind.[383] It should: (i) specify the legitimate/illegitimate uses of military intervention (the principled parameters); (ii) provide a clear basis in detailed law for intervention and for the termination of intervention; (iii) clarify the chain of command; (iv) specify the powers available to soldiers which then arise; and (v) ensure accountability to democratic and judicial oversight.
  • At very least, the relationship between the Civil Contingencies Bill and residual common law should be explored.

Two questions arise in regard to the list of Category 1 and 2 Responders in clause 2 and Schedule 1:

  • Why is there no need for the appearance in Category 1 of national organisations (leaving aside the failure to consider central government departments or even their regional offices, as already mentioned)? Examples include the Security Service and also the National Criminal Intelligence Service and the National Crime Service (the latter actually being derived from regional police squads). Only the British Transport Police is mentioned.
  • Should Category 2 include principal suppliers of petroleum products?

By clause 16, Part 1 is applied only to England and Wales. It would surely be desirable in the context of an emergency to avoid different legal sources.[384]

The list of exceptions to the power to make regulations in clause 21(4) should mention all those rights which are effectively absolute in the European Convention on Human Rights, including the right to life (Article 2), the right not to be tortured (Article 3), the right not to be subjected to forced labour (Article 4, which is wider than clause 21(4)(a)), the right to a fair trial (Article 6) and the right not to be subjected to retrospective penalties (Article 7).[385] Without such mention, it is difficult to see how the claim that the Bill is compatible with the European Convention on Human Rights[386] is easily sustainable, since powers to breach the Convention are granted. It might also be useful to mention the requirements of international humanitarian law.

The level of Parliamentary scrutiny under clause 24 is inadequate to achieve democratic accountability.[387] Any royal proclamation (clause 18) or emergency declaration (clause 19) must be made subject to a substantive vote rather than simply notification. Likewise, regulations should be subject to the affirmative procedure (subject to urgency).

In terms of ensuring respect for human rights, clause 25 stands out as a startling departure from accepted standards the need for which should be "compelling".[388] The accepted standard in this case is that only Parliament, through the medium of primary Acts, has the sovereign authority to pass legislation which is immune from possible striking down, though it is expressly subjected to the possibility of a declaration of incompatibility (Human Rights Act 1998, section 4) as if primary law. The Joint Committee on Human Rights expresses concern about this provision.[389] It is here recommended that

  • In the light of the arguments given by the Joint Committee on Human Rights, it would be undesirable to pass clause 25 in its present form. It sets a dangerous precedent which is not only inimical to the principle of rights but also to the principle of democratic accountability. Parliament is capable of passing legislation in an emergency (for example the Criminal Justice (Terrorism and Conspiracy) Act 1998 appeared and was passed within days in late August 1998).
  • Additional to the argument, it might be suggested that a limited procedural change could be made to the power to grant remedies under section 8 of the Human Rights Act 1998. For example, the relevant court could be required to stay any remedial order (i) until the date for appeal has passed and no appeal has been made; (ii) if an appeal is made, then the appeal court should have a presumptive requirement to stay the order of the lower tribunal. At the same time, it must be remembered that such a special exception was not considered necessary in connection with challenges to detention without trial under section 30 of the Anti-terrorism, Crime and Security Act 2001.

The other vital issue in relation to rights concerning the protection of rights relates to the restrictions in clause 21(4). One uncertainty is whether the relevant provisions rule out detention without trial. The explanatory notes suggest that the Civil Contingencies Bill has this effect, but this contention has never been confirmed by the courts or accepted by academic commentators who point to a difference between creating an offence punishable without trial and the power of detention without trial which can then be enforced through disciplinary offences tried in the usual way.[390] As a result:

  • It is suggested that detention without trial be specifically excluded in clause 21(4). Such a drastic step ought to be sanctioned expressly by Parliament.

In so far as official act under powers under the Civil Contingencies Bill, there may be a very wide range of officials and a wide range of powers. Especially in the panic of an emergency, there should be some kind of official identity tag which is visible to the public and must be produced on request.

The issue of compensation for emergency action against property is left too vague in the regulation-making power in clause 21(3). At very least, there should be a presumption in favour of compensation, so that any attempt to remove that right would have to be explicit and explained. The government has considerable experience through the Pool Re scheme in 1993 onwards for commercial property and the Troika scheme in 2001 for airlines in ensuring that emergency insurance can be offered. Such a scheme should be considered so that insurance might be available through commercial sources, even if it is no longer possible to offer direct government compensation in all cases.

Special protection should be given to the protection of means of communication of public information. So, the powers of the authorities to interfere with media such as newspapers should be subject to special restraint. This idea would follow other legislation, such as the Contempt of Court Act 1981, section 10 and the Police and Criminal Evidence Act 1984 section 13.

Along the same lines, and with added importance, special importance and immunity from the impact of emergency measures, should be accorded to (i) Members of Parliament for the purposes of transacting the business of Parliament and (ii) members of the judiciary for the purposes of transacting judicial business. Any effort to detain any Member of Parliament or members of the judiciary should be subject to specific approval by Parliament within a certain time.

The apparently full code of draft regulations produced by the Cabinet Office in 2001 under the Emergency Powers Act 1920 is an unremarkable update of the last used version in 1974 and follows a very familiar pattern of interferences with property, controls over public services and utilities, controls over transport, and public order and enforcement measures, as in the last published Emergency (No.3) Regulations 1974.[391] As the Cabinet Office states that the Civil Contingencies Bill has "a wider scope than existing legislation".[392] As a result, Parliament is being kept in the dark. The government is seemingly not prepared to indicate what really it has in mind in terms of powers and procedures and will reveal only the outdated portions relating to major industrial disputes. The lack of available information on the contingencies envisaged for forms of WMD attack means that, if ever needed, there will an absence of considered debate by both Parliament and a lack of preparedness on the part of agencies affected.[393] One might compare the position in the USA, where responsibilities for 12 Emergency Support Functions under the Federal Response Plan have been prepared and published.[394]

  • It is recommended that the Committee should ask whether corresponding drafts exist under the Bill. It should ask what approach is being, or will be, taken to the drafting and publication of such draft regulations. It will probably be unwieldy to have just one set of regulations, and it is also that sets of guidelines alongside regulations will be necessary for diverse sectors such as health care and petroleum distribution. The drafts should be published not just for the purposes of Parliamentary deliberation on the Bill but in the interests of open government.[395]

For the sake of completeness, it would be useful to include within the Civil Contingencies Bill the power to use military resources in the Emergency Powers Act 1964, section 2. Even if, contrary to previous arguments, a more ambitious Defence Bill is rejected, the opportunity should at least be taken to clarify the processes for request, the ensuing powers and the allocation of costs.[396]


325   One exception might be the use of cordons under the Terrorism Act 2000 s.33. Back

326   82/501/EEC (OJ No.L230 5.8.82 p.1), 87/216/EEC (OJ No.L85 28.3.87 p.36), 88/610/EEC (OJ No.L336 7.12.88 p.14), 96/82/EC (OJ L 10, 14.01.97). Back

327   S.I. No. 1902. See: Hilliard, L., "Local government, civil defence and emergency planning (1986) 49 Modern Law Review 476, at 483-6. Back

328   Loc. cit., p. 11. Back

329   New Zealand Law Commission Report No. 12, First Report on Emergencies (Wellington, 1990); Report No. 22, Final Report on Emergencies, (Wellington, 1991). Back

330   Final Report on Emergencies, p.x. Back

331   Ibid., para. 4.12. Back

332   see Whitty, N., Murphy, T., and Livingstone, S., Civil Liberties Law (Butterworths, London, 2001) p.126. Back

333   "The American experience", in Shetreet, S., Free Speech and National Security (Nijhoff, Dordrecht, 1991). Back

334   Ibid. See p.1-2. For the background to the Defence Act 1990, see Robertson, B., "The Defence Act 1990 and Military Assistance to the Civil Power" (1991) 14 New Zealand Universities Law Review 254. Back

335   Ibid., para. 9.80. Back

336   Ibid., para 8.5. Back

337   Ibid., para. 8.65. See also Final Report, paras. 9.6 and 9.7. Back

338   See ibid. para.9.20. Back

339   Ibid. para. 8.76. Back

340   The central government's co-ordinating agency is the Cabinet Office's Civil Contingencies Secretariat. See: Jeffery, K., and Hennessy, P., States of Emergency: British governments and strikebreaking since 1919 (Routledge & Kegan Paul, London, 1983) chap.8; Campbell, D., War Plan UK (Burnett Books Ltd., London, 1982); Laurie, P., Beneath the City Streets (Granada, London, 1983); Hennessy, P., "Whitehall contingency planning for industrial disputes" in Rowe, P.J., and Whelan, C.J. (eds), Military Intervention in Democratic Societies (Croom Helm, London, 1985). Back

341   For details, see its World Wide Web pages at: http://www.mcdem.govt.nz/memwebsite.nsf. Back

342   For details, see its World Wide Web pages at: http://www.ocipep.gc.ca/home/index_e.asp. The authority for military aid is granted by the Emergencies Act 1988 Part XI. For the background, see McDonald Commission Report of the Commission of Inquiry concerning certain activities of the Royal Canadian Mounted Police, Freedom and Security (2nd Report, Ottowa, 1981). Back

343   Note also in the USA the Federal Emergency Management Agency which is established under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 USC s.5121). See further the document submitted by the BIICHR and Bentz, J.A., "The National Response Plan" and "Government and voluntary agencies" in Ghosh, T.K., Prelas, M.A., Viswanath, D.S., Loyalka, S.K., (eds.), Science and Technology of Terrorism and Counterterrorism (Marcel Dekker Inc., New York, 2002). Back

344   Defence Committee, Defence and Security in the UK (2001-02 HC 518), and Defence Committee, Draft Civil Contingencies Bill (2002-03 HC 557) para.24. Back

345   Defence Committee, Defence and Security in the UK (2001-02 HC 518). Back

346   See the list of "achievements" in the Consultation Paper, para.2.12. Without discussion and external oversight, how is it to be determined whether these really are "achievements"? Back

347   Compare the details of the Access Overload Control, Government Telephone Preference Scheme, and the Emergency Communications Network, which all rightly exist but are wholly beyond public scrutiny: Cabinet Office, Dealing with Disaster (3rd ed., London, 2003) chap.3. Back

348   Compare in the USA the Occupational Safety and Health Administration, Hazardous Waste and Emergency Response Standard (29 CFR 1910.120). See Lippy, B., "Protecting the health and safety of resilience and recovery workers" in Levy, B.S., and Sidel, V.W., Terrorism and Public Health (Oxford University Press, New York, 2003).  Back

349   Op. cit. paras.1.8, 1.12. Back

350   See Walker, C., A Guide to the Anti-terrorism Legislation (Oxford University Press, Oxford, 2002) chap.1. Back

351   Inquiry into Legislation against Terrorism (Cm.3420, London, 1996) paras.5.6-5.9. Back

352   Terminiello v. Chicago (1949) 337 U.S. 1 at p.37 per Douglas J. Back

353   This point is also reflected in the view of the Joint Committee on Human Rights, Scrutiny of Bills and Draft Bills (2002-03 HC 1005) para.3.4. Back

354   This conclusion was also reached by the Inquiry into Legislation against Terrorism (Cm.3420, London, 1996) para.5.15. Back

355   Report No. 12, First Report on Emergencies (Wellington, 1990); Report No. 22, Final Report on Emergencies, (Wellington, 1991). Back

356   See especially Council of Europe, Guidelines on Human Rights and the Fight Against Terrorism (Strasbourg, 2002). Back

357   Lee, H.P., Emergency Powers (Law Book Co., Sydney) (1984) p.ix. See further Hope Report, Royal Commission on Intelligence and Security (4th Report PP. 249 (Cth) (Canberra, 1977). Back

358   See Walker, C., "Constitutional governance and special powers against terrorism" (1997) 35 Columbia Journal of Transnational Law 1. Back

359   (1927) 43 TLR 178. Back

360   Cabinet Office, Consultation Document (Cm.5843, London, 2003) para.2. Back

361   It is realized of regional commissioners that the concept derives from models going back to 1925 and first used in 1926. Back

362   Campbell, D., War Plan UK (Burnett Books Ltd., London, 1982) p.15. Back

363   para.5.19. Back

364   As demanded by the Defence Committee, Draft Civil Contingencies Bill (2002-03 HC 557) para.64. Back

365   This seems to be suggestion in the Consultation Paper para.5.20. Back

366   Evelegh, R., Peacekeeping in a Democratic Society (Hurst, London, 1978); Jeffery K., and Hennessy, P., States of Emergency: British governments and strikebreaking since 1919, (Routledge & Kegan Paul, London, 1983); Winterton, G., "The Prerogative in Novel Situations" (1983) 99 Law Quarterly Review 407; Greer, S. C., "Military Intervention in Civil Disturbances" [1983] Public Law 573; Peak, S., Troops in Strikes (Cobden Trust, London, 1984); Bonner, D., Emergency Powers in Peacetime (Sweet & Maxwell, London, 1985); Rowe, P.J., and Whelan, C.J. (eds), Military Intervention in Democratic Societies (Croom Helm, London, 1985); Campbell, C., Emergency Laws in Ireland 1918-1925, (Clarendon Press, Oxford, 1994). Back

367   The Case of the King's Prerogative in Saltpetre (1606) 77 ER 1294. Back

368   R v Hampden (1637) 3 Cobb.St.Tr. 826. Back

369   Burmah Oil Co Ltd v Lord Advocate [1965] AC 75. Back

370   Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. See: Lee, S., "G.C.H.Q.: Prerogative and public law principles" [1985] Public Law 186; Wade, H.W.R., "Procedure and prerogative in public law" (1985) 101 Law Quarterly Review 180; Walker, C., "Review of the prerogative" [1987] Public Law 62. Back

371   [1989] Q.B. 26. See Benynon, H.J., "Prerogative to supply plastic baton rounds and C.S. gas to the police" [1987] Public Law 146; Bradley, A. W., "Comment" [1988] Public Law 298. Back

372   Requisitioning of Ships Order, 1982 (SI No.1982, p1693). See Turpin, C., British Government and the Constitution (2nd ed., Weidenfeld & Nicolson, London 1990) pp. 383-4. Back

373   HL Debs vol.613 col.241 16 May 2000, Lord Bach. Back

374   [1989] 3 W.L.R. 1346 at p.1360; see also Attorney-General v Hancock [1940] 1 KB 427; re Lockerbie Air Disaster (1992) The Times 20 May. Compare Terrorism Act 2000 s.105. Back

375   The case for reform of national security laws in general and the principles upon which it should be based are exhaustively examined by Lustgarten, L., and Leigh, I., In From the Cold (Oxford University Press, Oxford, 1984), Part V. See also: Royal Commission on Intelligence and Security, 4th Report (Australian Government Publishing Service, Canberra, 1977) Vol.1, C, paras.122, 123; Commission of Inquiry concerning Certain Activities of the RCMP, Second Report: Freedom and Security under the Law (Ottowa, 1981) Pt.V, chap.4 para.2. Back

376   Op. cit., p. 8. Back

377   Loc. cit., p.591. Back

378   Loc. cit., p.595. Back

379   Ibid., p.599. Any conclusion must also take account of the powers to intervene derived from the Criminal Law Act 1967 s.3 or of the duties in common law of public officers (R v Dytham [1979] Q.B. 722; R v Bowden [1995] 4 All ER 505; Nicolson, D., "The Citizen's Duty to Assist the Police" [1992] Criminal Law Review 611). Back

380   Ibid., p.599. Back

381   See Bonner, D., Emergency Powers in Peacetime, (Sweet & Maxwell, London, 1985) chap.5; Rowe, P., Defence: The Legal Implications (Brassey's Defence Publishers, London, 1987) chap.4. Back

382   See Walker C., and Reid, K., "Military aid in civil emergencies: lessons from New Zealand" (1998) 27Anglo-American Law Review 133. The idea is rejected by the Consultation Paper (para.37) without argument. Back

383   Kay, R.S., "Substance and structure as constitutional protections" [1989] Public Law 428, at 430-1. Back

384   The plans in Scotland and Northern Ireland may already be different: Defence Committee, Draft Civil Contingencies Bill (2002-03 HC 557) para.53. Back

385   Compare the more extensive list at Joint Committee on Human Rights, Scrutiny of Bills and Draft Bills (2002-03 HC 1005) para.3.31 and see also para.3.35. Back

386   Consultation Paper, para.5.30. Back

387   See Defence Committee, Draft Civil Contingencies Bill (2002-03 HC 557) para.73. Back

388   Defence Committee, Draft Civil Contingencies Bill (2002-03 HC 557) para.68. Back

389   Joint Committee on Human Rights, Scrutiny of Bills and Draft Bills (2002-03 HC 1005) para.3.26. Back

390   Morris, G.S., "The Emergency Powers Act 1920" [1979] Public Law 317 at p.324. Back

391   1974 SI no.350. In Northern Ireland, see Emergency Powers 1974 SI no.88. Back

392   Questions for the Bill Team, Appendix 9, question 22. Back

393   See New Zealand Law Commission, Report No. 22, Final Report on Emergencies, (Wellington, 1991) para.6.79. Back

394   See Bentz, J.A., "The National Response Plan" and "Government and voluntary agencies" in Ghosh, T.K., Prelas, M.A., Viswanath, D.S., Loyalka, S.K., (eds.), Science and Technology of Terrorism and Counterterrorism (Marcel Dekker Inc., New York, 2002). The relevant legislation is the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 USC s.5121). See further the document submitted by the BIICHR. Back

395   Compare Defence Committee, Draft Civil Contingencies Bill (2002-03 HC 557) para.13. Back

396   The idea is rejected by the Consultation Paper (para.37) without argument. Back


 
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